A) IN CIVIL AND ADMINISTRATIVE MATTERS
1. Is the authority responsible for the enforcement specified in the law or in the constitution?
Yes. The authority responsible for execution and enforcement procedures is determined by law. As a rule, judgments of civil courts are enforced upon the applications of parties. However, some judgments of civil courts regarding public order are directly enforced without any need to the application of the parties by institutions following the notification made by the court to such institutions. For example, as keeping birth registers properly is an issue of public order, changes made on birth registers are applied directly and without any need to the application of the relevant person upon the notification of the court to the Birth Registration Office. Except such exceptional cases, judgments of civil courts are, upon the application of the party in favour of which the judgment was made, enforced by the bailiff’s office authorized by the law. According to Article 1 of Enforcement and Bankruptcy Law, every civil court of first instance shall have an adequate number of bailiff’s offices within its jurisdiction. In such bailiffs offices, there are personnel and a bailiff in charge of and authorized to enforce the judgments of the civil court upon the application of the concerned. In places where there is no bailiff, the task shall be performed by the chief clerk.
2. What are the competences of the judge in the enforcement procedure?
· He is responsible for the enforcement
Yes . A judge is only responsible for the enforcement of civil court judgments related with public order. As explained in the above given example, as enforcement of a judgment related with changes on birth registers is an issue of public order, for the enforcement of such judgment, the judge is obliged to send the judgment directly to the birth registration office. The application of the parties is not necessary for this kind of enforcement. However, except for this, the judge is not responsible for the enforcement of judgment.
In addition, there are execution courts in charge of examining complaints and objections against the procedures of bailiff’s offices. There is only one judge at an execution court. Complaints and objections regarding that the bailiff’s office procedures of judgment enforcement are contrary to the law shall be resolved by an execution judge.
.He has others competences as regards enforcement
An execution judge has the authority of and responsibility for monitoring and control on all kinds of procedures of the bailiff’s offices whether or not such procedures are related with the enforcement of a court judgment. Pursuant to the Execution and Bankruptcy Code, the execution judge may use his position as an examination and control authority for the complaints and objections directly or indirectly as of ensuring the enforcement of the judgment.
3. Is the judge responsible for the enforcement (if exists) the same than the judge who took the decision?
x☐ Yes. As explained above, according to Turkish Enforcement Law, the judge who made the judgment of a civil court and the judge who is, to a certain extent, responsible for the enforcement of such judgment are always different from each other.
4. Do the parties have to make a new application for the decision to be enforced?
Except for the judgments regarding public order, parties always have to lodge a new application for the enforcement of civil court judgments. For the enforcement of the court decree, the party, in favour of which the judgment was made, shall apply to the bailiff’s office by issuing the relevant court judgment. Such a court decree can be related with all kinds of legal conflicts such as payment of a debt, delivery of an immovable property, handover of a child to his guardian or prohibiting the relevant person from behaving in a certain manner.
In addition, judgments of administrative courts shall, without any need to a new application, have to be enforced immediately by the administrative authorities following the notification of the court. In case the defendant administrations avoid obeying the court judgment, the individuals have the opportunities to apply to the administrations again and request them to obey the court judgment; and if the individuals receive a negative response to their request or if no response is given to them, they have the opportunity to institute compensation proceedings.
5. Shall this new application end with a judicial decision?
As a rule, a new judicial decision is not made as a result of an application made to bailiff’s office for the enforcement of civil court judgments. The judgment shall be enforced by the bailiff’s office. Complaints and objections regarding that the bailiff’s office procedures of judgment enforcement are contrary to the law shall be examined by an execution judge. At the end of such examination, execution judge shall decide on the cancel of the bailiff’s office procedures or decide that the bailiff perform a certain procedure. The execution court handles such proceedings in the speediest and fastest way. Decisions made by an execution judge naturally carry judicial features. Bailiff is obliged to enforce the judgments made and finalized by this way.
6. Is the judge working with other actors involved in the enforcement procedure?
x☐ Yes. In the light of above given explanations, the execution judges can be accepted as an actor of enforcement system as they have the authority to examine and control the procedures of bailiff’s office .
7. When he is working with other actors in the enforcement procedure, what are the exact competences of the judge:
He starts the procedure?
x☐ No. Explanations given for the above questions are also valid for this question. The execution judge does not personally start the procedures. Execution judges can participate in the process at any time by examining complaints and objections against execution actions started by bailiff’s offices upon the application of the person concerned with the sentence, and by using their authority to supervise and monitor.
· He controls and supervises the procedure (eg timeframes) and the work done by the other actors?
· Others competences?
8. What is the training of the person responsible for the enforcement if it is not a judge?
Qualifications of bailiffs and deputy bailiffs are stipulated under the By-Law on appointment of bailiffs and deputy bailiffs. According to this By-Law, the candidates have to be graduated from one of the law faculties, justice academy, or justice departments of occupational academies. Furthermore, the appointment of the candidates also depends on their success in the oral and written exam.
9. Can the parties appeal if the decision is not enforced within a reasonable time?
x Yes. First of all, an execution action is started at a bailiff’s office for the enforcement of court judgment. Enforcement and Bankruptcy Law determines peremptory times for each action in order to conclude the execution proceedings.
All execution actions such as notification of a payment order to a debtor, objection to such order, examination of this objection, attachment and sale are to be carried out within this peremptory term. These terms are binding for parties and execution bodies.
If a personal bailiff’s office does not fulfil the proceeding within the time period determined for him, the relevant persons can lodge a complaint against him at an execution court. It is also possible to apply for disciplinary penalties or instituting compensation action against the official who do not fulfil the proceeding within due time.
As regards administrative justice, the answer of this question is explained above answer given to Question 15. A lawsuit may be brought against the administration which does not fulfil the requirements of a court judgment, as well as a lawsuit can also be brought against a public official who does not fulfil the requirements of the judgment if he has a personal liability. The administrative has a right of recourse for the officials who have faults.
10. What are the powers of the judge to speed up the enforcement?
For legal conflicts, as explained above, terms are determined by Law and they are peremptory. For the execution actions for which no peremptory terms are determined in laws can be fastened by being supervised by the judge on whether they were performed within a reasonable time.
11. What are the powers of the judge to force the enforcement?
Execution Judge shall perform the task of enforcement by examining the actions performed within the competence and jurisdiction determined by him, and by using his authorities of supervising and monitoring on bailiff’s office. Within the scope of the competency to supervise and monitor, and if necessary, he has the authority to institute disciplinary and criminal action against officials of bailiff’s office.
Furthermore, an execution judge may give penalties of imprisonment and fine to the persons who deliberately hinders and delays the execution of the court judgments. Such penalties carry coercive qualities. For example, en execution judge may give an imprisonment penalty for 6 months at most to the persons who delay or do not fulfil the requirements of a judgment for handover of a child. He also may give an imprisonment penalty for 3 months to the persons who do not pay the maintenance or to persons who object to carry out a work or not to carry out a work.
According to Article 138 of the Turkish Constitution, it is compulsory to execute administrative judiciary judgments without need to any other procedures. Criminal and disciplinary proceedings shall be instituted against public officials who do not fulfil the requirements of the judgment
12. What are the powers of the judge to protect the rights of parties and of third parties in the enforcement?
It is an important guarantee for the parties that the execution judge has a supervisory authority on bailiff’s office (Articles 4 and 13 of Execution and Bankruptcy Law) and these complaints and objections regarding the actions of bailiff shall be resolved within a short time by using simple trial procedure. The possibility of suing against the State in lieu of the faults of the officials bailiff’s offices for compensation is another guarantee.
13. In your country, what are the main obstacles to the enforcement of decisions?
Whereas there is not any legislative shortcomings in this context, some delays can be occurred while enforcing execution proceedings due to workload and insufficiency in number and qualifications of personnel.
14. According to you, what main changes are needed to improve the effectiveness of the enforcement proceedings in your country?
First solutions coming to mind for improving the effectiveness of the enforcement system are to increase the number of bailiff’s office and personnel, to ensure them seasonal trainings for expanding their qualifications.
15. Are the enforcement procedures similar for civil and administrative matters?
x☐ No .
As explained under the above given answer to Question 4, as a rule, the execution of the civil court judgments shall be ensured via bailiff’s offices and upon the application of parties. For the execution of the judgments of administrative judiciary, notification of the verdict to the administration is enough and there is no need for the application of the relevant person. According to Article 28 of Code of Administrative Justice Procedure, public officials have to fulfil the requirements of the civil court decision within 30 days following the notification date. In case of acting contrary to this provision, an action may be brought against the administration, or a compensation action against the public official who failed to fulfil the requirements of the decision may also be brought.
B) In criminal matters
16. Is the authority responsible for the enforcement of sentence specified in the law or in the constitution?
It is generally stated under Article 138 of the Constitution that legislative and executive organs and the administration shall comply with court decisions.
According to Article 5 of the Law on the Enforcement of Penalties and Security Measures, enforcement of all kinds of penalties decided by Criminal courts shall belong to the competent and authorized Chief Public Prosecutor’s Office.
17. What are the competences of the judge in the enforcement of sentences:
· He is responsible for the enforcement?
· He has others competences as regards enforcement?
Enforcement Magistrates are located in provinces and districts where there is a prison. According to Law on Prison Enforcement Judges, authorities of this magistrates are examine the procedures performed in relation with the sentenced and detained persons in penal institutions and detention houses and also to examine complaints lodged related with such activities, to make a decision on such complaints, and to perform other tasks given by laws.
Besides, according to Article 98 of the Law on the Enforcement of Penal and Security Measures, if there is a doubt about the interpretation of the penalty during its enforcement, an additional decision may be taken by the Chief Public Prosecutor’s Office from the court that imposed the sentence regarding how the sentence should be enforced.
18. Is the judge responsible for the enforcement (if exists) the same than the judge who took the decision?
As stated in the answer of Question 17, as a rule, the authority responsible for the enforcement of the judgment is the public prosecutor. However, for some kinds of enforcement procedures, permission must be taken from enforcement magistrates. The place of examination on complaints and objections regarding enforcement is the enforcement magistrates. The judge making the judgment and the enforcing judge are mostly different. In this case, if the enforcing judge has a doubt he may request an additional descriptive decision from the judge that made the judgment.
19. Is the judge working with other actors involved in the enforcement of sentences?
Please specify which actors. The judge takes part in enforcement together with Public Prosecutor.
20. When he is working with other actors in the enforcement procedure, what are the exact competences of the judge:
· He starts the procedure?
☐ Yes The court starts the enforcement process by sending the finalized sentence verdict to the relevant Chief Public Prosecutor’s Office.
· He controls and supervises the procedure (eg timeframes) and the work done by the other actors?
☐ Yes. A conditional release of a sentenced person shall be decided by the court which made the judgment. It controls and examines the enforcement of the judgment by this way.
21. What are the powers of the judge to protect the rights of detainees and of third parties in the enforcement?
As stated in the answer of Question 18, the execution judge has competency to resolve the complaints made regarding the enforcement process.
22. What are the powers of the judge as regards the alternative solutions to prison ?
According to Article 50 of Turkish Penal Code, if the decided punishment is a short-term one, the judge may suspend it or may substitute it for a fine, a measure for making him work fort he public weal, admittance to an educational institution or prohibition from a profession and an art.
23. What are the powers of the judge as regards the implementation of sentences (arrangement of sentence, conditional release, etc.) ?
The court which made the judgment shall, upon the request of the public prosecutor, decide on the conditional release of the sentenced person if it has conditions. For deciding on a conditional release, the judge has to believe that the sentenced person has served a certain amount of total punishment stipulated under law in a good manner.
24. What are the powers of the judge as regards the effective payment of fines ?
According to Article 52 of Turkish Penal Code, by taking into account of personal and economic conditions of the person subject to penalty, the judge may determine the amount of the fine and may decide that such fine is to be paid in instalments.
25. What are the main reasons for complaints concerning the rights of detainees?
Problems related with the functioning of a prison such as right to meet with relatives, right to make phone calls, right to request for medical treatment can be mentioned.
26. Who is responsible in your country, for complaints about living conditions in prison? What is the procedure for processing such complaints?
As mentioned above, the enforcement of punishments are performed by Chief Public Prosecutor’s Office. Complaints regarding the living conditions in penal institutions are therefore primarily made to the Public Prosecutor’s Ofiice.
On the other hand, Penal Institutions and Detention Houses Monitoring Boards are obliged to examine procedures and activities on site regarding enforcement and recruitment practices in prisons, and to inform the competent authorities of the faults and deficiencies they came across. Detected deficiencies shall be reported at least once in every four months to the Ministry of Justice, Committee on Inspection of Human Rights of Turkish Grand National Assembly, Chief Public Prosecutor’s Office and also to the relevant execution magistrate.
27. In your country, what are the main obstacles to the enforcement of sentences?
Overcrowded prisons are the most major problem of the enforcement system.
28. According to you, what main changes are needed to improve the effectiveness of the enforcement of sentences in your country?
To expand the physical capacity of the prisons, to increase the educational level of the penal execution staff, and to increase their salaries will contribute to the solution of the problems of enforcement system.